Boughton v Masterton Homes Pty Ltd [2022] NSWSC 1556

Boughton v Masterton Homes Pty Ltd [2022] NSWSC 1556

Leave to file the proposed cross-claim was refused because the defendant had identified the structural engineer as a possible concurrent wrongdoer at the inception of the Court proceedings about two years earlier, had expert evidence suggesting joinder might be prudent, gave an insufficient explanation for waiting until October 2022 to seek joinder, and the joinder would delay allocation of a hearing date by at least six months and likely prolong proceedings concerning the plaintiffs' family home.

Jurisdiction
Australia
Judgment Date
04 November 2022
Procedural Posture
Application by Defendant for Leave to File and Serve a Technology and Construction List Cross Claim Statement Against a Structural Engineer / Procedural Ruling in the Equity Technology and Construction List
Outcome
Leave to issue the cross-claim refused.
Legal Topics
['leave to File Cross Claim Out of Time' 'late Joinder' 'delay and Prejudice' 'building Defects' 'concurrent Wrongdoer']
['civil Procedure' 'building and Construction'] ['leave to File Cross Claim Out of Time' 'late Joinder' 'delay and Prejudice' 'building Defects' 'concurrent Wrongdoer']

Case Brief

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Procedural Posture

Application by Defendant for Leave to File and Serve a Technology and Construction List Cross Claim Statement Against a Structural Engineer / Procedural Ruling in the Equity Technology and Construction List

Legal Issues

  1. 1 ['Whether the defendant should be granted leave at a late stage to file and serve a cross-claim against the structural engineer.' 'Whether the defendant provided an adequate explanation for its delay in seeking to join the proposed cross-defendant.' 'Whether the delay and prejudice to the plaintiffs outweighed the discretionary factors favouring joinder.']

Ratio Decidendi

Leave to file the proposed cross-claim was refused because the defendant had identified the structural engineer as a possible concurrent wrongdoer at the inception of the Court proceedings about two years earlier, had expert evidence suggesting joinder might be prudent, gave an insufficient explanation for waiting until October 2022 to seek joinder, and the joinder would delay allocation of a hearing date by at least six months and likely prolong proceedings concerning the plaintiffs' family home.

Court Disposition

Leave to issue the cross-claim refused.

Orders

  • ['Refuse leave to issue cross-claim.']